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Shesterinina, A. (2016) Evolving norms of protection: China, Libya and the problem of intervention in armed conflict. Cambridge Review of International Affairs, 3. pp. 812-830. ISSN 0955-7571

https://doi.org/10.1080/09557571.2016.1170103

This is an Accepted Manuscript of an article published by Taylor & Francis in Cambridge Review of International Affairs on 02/08/2016, available online: http://www.tandfonline.com/10.1080/09557571.2016.1170103.

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Evolving Norms of Protection: China, Libya and the Problem of Intervention in Armed Conflict*

Anastasia Shesterinina†

_________________________

Paper accepted for publication in the Cambridge Review of International Affairs Subsequent version published online 2 August 2016

Publisher version http://www.tandfonline.com/doi/abs/10.1080/09557571.2016.1170103 DOI: http://dx.doi.org/10.1080/09557571.2016.1170103

COPYRIGHT: © 2016 Informa UK Limited __________________________

Abstract

This article examines the influence of civilian protection norms on China’s response to the 2011

crisis in Libya. It argues that Responsibility to Protect—an emerging norm commonly associated

with the Libyan case—did not play a major role in China’s abstention on Resolution 1973 (2011)

authorizing international intervention in Libya. For China, Responsibility to Protect is merely a

concept and could not serve as the basis for intervention. Instead, Protection of Civilians in Armed

Conflict, as a normative foundation for civilian protection endorsed by China, offers a more

appropriate lens for understanding China’s vote. Protection of Civilians, however, does not

accommodate China’s unprecedented evacuation of Chinese nationals from Libya. This operation

proceeded from a third logic of Protection of Nationals Abroad, which poses dilemmas for China’s

strict adherence to the principles of sovereignty and non-interference and brings to bear domestic

interests and notions of protection.

* The author thanks Brian L. Job, Philip Cunliffe, and Ramesh Thakur for comments and Ji-Eun Kim, Caroline Duran, Genevieve Barrons, and Elisabeth MacArthur for research assistance. Support for research is acknowledged from the Social Sciences and Humanities Research Council of Canada, the Security and Defence Forum Program, the University of British Columbia, and the MacMillan Center at Yale University. † Lecturer in Politics/International Politics, Department of Politics, the University of Sheffield. Ph.D., Political Science, University of British Columbia.

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Introduction China’s response to the 2011 crisis in Libya, including its vote of abstention on the United Nations (UN) Security Council (SC) Resolution 1973 (2011) authorising international intervention in Libya and evacuation of China’s nationals caught up in the crisis, raises two questions. How did civilian protection norms influence China’s actions in Libya and how can these actions be reconciled with China’s traditional position on non-intervention? This article argues that Responsibility to Protect (R2P)—an emerging norm that calls international actors to bear responsibility for protecting civilians from mass atrocity crimes and that is commonly associated with the intervention in Libya—did not play a major role in China’s vote on Resolution 1973 (2011). For China, R2P is a concept, rather than a norm or a principle of international relations, and could not serve as a framework for intervention. Instead, China’s position on Protection of Civilians in Armed Conflict (POC) as a well-established international framework makes it a more appropriate lens for understanding China’s vote. The long history on the UN agenda and the legal standing that POC has received over years of discussion and debate have made POC an important norm and a guideline for civilian protection action for China. It situates China’s acceptance of the need for protection action in the exceptional circumstances of the Libyan crisis within the broader normative context. However, POC did not accommodate China’s actions on the ground—what Chinese media framed as the ‘Great Evacuation’ of Chinese nationals from Libya. These actions proceeded from a third logic of Protection of Nationals Abroad (PNA)—a grey area in international relations used by states to intervene in other states’ territory to rescue their nationals in the event of a crisis. Undertaken before the adoption of Resolution 1973 (2011), with participation of China’s military, and a host state consent complicated by ongoing violence, this PNA mission in Libya and China’s vote on the

intervention sit uneasily with China’s insistence on sovereignty and non-interference and point to

the importance of domestic interests and notions of protection for China’s actions abroad. The analysis proceeds in three parts. The first part briefly defines and traces the evolution of POC, R2P, and PNA—the norms of intervention to protect civilians addressed in this article.1 The second part looks at the case of China and the protection of civilians in Libya. I conclude by drawing the implications of China’s actions in Libya for our understanding of the evolving norms of protection and the tensions involved in protecting civilians in crisis situations. Norms of Intervention to Protect Civilians This section defines and examines the evolution of three norms of intervention to protect civilians, namely POC, R2P, and PNA, rarely included in the discussion of civilian protection.2 It outlines 1 While these norms encompass civilian protection options other than intervention, I focus on their intervention aspect. 2 I adopt the definition of norms as ‘standard[s] of appropriate behavior’ and apply it broadly to POC, R2P, and PNA, in the sense of a common concern with civilian protection (Finnemore and Sikkink 1998, 891; on the shared normative core of protection, see Breakey et al (2012)). I follow Wiener’s (2014, 3) ‘principle of contestedness’ in viewing these norms as contested ‘in principle’ to a varying degree after their emergence, institutionalization, and implementation. While POC ‘enjoys a less contested reputation’, R2P and PNA are controversial and, in principle, may not achieve the taken-for-granted quality implied in Finnemore and Sikkink’s (1998) life-cycle model (Breakey and Francis 2011, 39).

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the historical context, norm emergence (Finnemore and Sikkink 1998), institutionalization (Risse et al 1999), and implementation (Betts and Orchard 2014) of these norms in the context of the UN and highlights the tensions among and between these norms and the principles of sovereignty and non-interference in states’ internal affairs.3 Protection of Civilians in Armed Conflict Protection of civilians has a long history of debate rooted in an increasing recognition during the twentieth century of the burdens that civilians bear in times of crisis, be it nature-related or man-made. This article focuses on Protection of Civilians in Armed Conflict, which since the 1990s has been a separate thematic issue on the UN agenda.4 UN bodies define POC as ‘measures… to protect the safety, dignity, and integrity of all human beings in times of war which are rooted in obligations under international humanitarian law (IHL), refugee law, and human rights law’ (GCRP 2009, 1). The basis of POC is the idea that a sovereign state may not in certain circumstances be regarded as the sole provider of security to its people and that the international community may be involved in such provision in situations of armed conflict. Boutros-Ghali articulated this idea in An Agenda for Peace in the early 1990s. ‘[A]rmed conflicts’, he said, ‘bring fear and horror to humanity, requiring our urgent involvement to try to prevent, contain and bring them to an end.’5 With failures of the UN efforts in the crises in Rwanda and the Balkans, among others, this urgent need became even more apparent in the late 1990s (SCR 2008). As a result, for the first time POC was addressed as a separate issue in the Secretary-General’s report on the situation in Africa in 1998.6 The report stressed the extent of civilian suffering in armed conflict and referred to civilian protection in such situations as a ‘humanitarian imperative.’7 It laid out the normative foundations of civilian protection as not simply ‘a matter of defending states… [but of] defending humanity itself’, and drew a legal basis of civilian protection in armed conflict from the principles of international law.8 This report marked the emergence of the POC norm within the UN. The norm saw institutionalization at the UN as Secretary-General reports, presidential statements, and SC resolutions began to address it on a regular basis and called upon the norm in case-specific mandates. In his reports, Secretary-General offered recommendations to the SC regarding POC.9 Key SC resolutions responding to these recommendations include Resolutions 1265 (1999), 1296 (2000), 1674 (2006), and 1738 (2006).

3 Principles have ‘a status of shared understanding and… sufficient consensus to… function as a foundation for action’ (Bellamy 2009, 2). Sovereignty and non-interference are primary examples in the contemporary international system. 4 Breakey (2012, 40-41) differentiates between combatant, peacekeeping, Security Council, and humanitarian POC. I do not address the latter and focus on the normative foundation for civilian protection provided by POC, rather than its practice within UN peacekeeping. 5 A/47/277–S/24111 of 17 June 1992, para. 13. 6 S/1998/318 of 13 April 1998. See also SCR (2011). 7 S/1998/318 of 13 April 1998, para. 49. 8 S/1998/318 of 13 April 1998, para. 3. 9 See S/1999/957 of 8 September 1999; S/2001/331 of 20 March 2001; S/2002/1300 of 26 November 2002; S/2004/431 of 28 May 2004; S/2005/740 of 28 November 2005; S/2007/643 of 28 October 2007.

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Resolution 1296 (2000) marked a significant development on POC. It drew an explicit connection between breaches of IHL and human rights in armed conflict and international peace and security, the SC’s main task. ‘[D]eliberate targeting of civilian populations’, it stated, ‘may constitute a threat to international peace and security.’10 This framing of the issue allows the SC to use measures beyond peaceful means to ensure civilian protection as part of its task of maintaining international peace and security. POC was implemented for the first time in Resolution 1270 (1999) on Sierra Leone that authorised the UN peacekeeping operation ‘to afford protection to civilians under imminent threat of physical violence.’11 This mandate offered the operational definition of POC (Holt and Taylor 2009, 57). The norm was then repeatedly used in case-specific mandates in the context of UN peacekeeping operations.12 However, questions remain regarding its practice, especially the distribution of roles between host states and the international community and specific measures to be taken.13 Responsibility to Protect Responsibility to Protect was a subsequent normative development in the area of protection. The insights gained over the 1990s that not only the state and conflict parties, but also the international community are responsible for the provision of security to civilian populations in armed conflict, and that the SC can invoke measures beyond peaceful means to provide such protection, constitute important stepping stones for this development. The emergence of R2P dates back to the foundation in 2000 of the International Commission on Intervention and State Sovereignty (ICISS). Research and consultations leading up to the ICISS report underscored the tension between sovereignty and responsibility embedded in the notion of civilian protection (Annan 1999). R2P, as articulated in the report, stressed that sovereignty carries with it a responsibility of the state to protect its people. When it fails to do so, its sovereignty may be breached. Notably, the report related international responsibility to the SC’s task to uphold international peace and security, but detached R2P from humanitarian intervention by highlighting the primary use of non-coercive means by the international community and the use of force only as a measure of last resort. It added an emphasis on preventative action. ‘Prevention is the single most important dimension of [R2P]’, it said (ICISS 2001, xi). An early statement on R2P, the report included a broad range of causes of harm to populations, for which states could bear repercussions, leading to serious doubts among states such as China and Russia about desirability of such a norm. The scope of the emerging norm was, thus, highly contested in the process toward institutionalization (Welsh 2013). In 2005, when the norm was put to a test at the UN World Summit and accepted by consensus in the Outcome Document, its scope was narrowed to ‘responsibility to protect populations from

10 S/RES/1296 of 19 April 2000, para. 5. See also S/PRST/1999/6 of 12 February 1999. 11 S/RES/1270 of 22 October 1999, para. 14. 12 See, for example, S/RES/1856 of 22 December 2008, on the Republic of the Congo. 13 For a discussion, see, for example, Holt and Berkman (2006) and Bellamy and Williams (2011).

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genocide, war crimes, ethnic cleansing and crimes against humanity.’14 R2P was subsequently reaffirmed in Resolutions 1674 (2006) and 1894 (2009), among others. In the 2009 Secretary-General’s report it was defined as comprised of three pillars—the protection responsibility of the state, the international community’s commitment to assist the state, and the international responsibility to respond if the state fails to protect its people.15 As Welsh (2013, 368) argues, ‘R2P is best conceived as a responsibility to consider a real or imminent crisis involving mass atrocity crimes’ (emphasis in original). This definition clarifies the relationship between POC and R2P. The two norms developed in relation to one another and share the normative foundations (Sampford 2012, 105). They build on the idea that protection of civilians in armed conflict and populations at risk of mass atrocities is related to the task of the SC to maintain international peace and security and, hence, specify a role for the Council in mandating protective action. Neither calls for intervention as the single available action. The emphasis of R2P on the primary responsibility of the state and on prevention, and the scope of the norm distinguish it from POC. Whereas POC implies reaction to breaches of IHL and human rights in situations of armed conflict broadly, R2P calls for prevention of particular mass atrocity crimes and clarifies the notion of responsibility for both the state and the international community in ensuring that such atrocities are adequately addressed.16 In contrast to POC, institutionalization of R2P over the last decade was not matched by a similar level of implementation. R2P was mentioned in Resolution 1706 (2006) on Darfur, but omitted from subsequent resolutions on this and other cases (Rothwell and Nasu 2011). It was not until the crisis in Libya that R2P was specifically referred to in Resolutions 1970 (2011) and 1973 (2011), arguably making the case of Libya the first instance of implementation of the norm (Bellamy 2010). The difficulties in putting R2P into action, evident in its scarce implementation, the lack of a mechanism for implementation that all UN Member States could agree to, once again highlight the tension between the principles of sovereignty and non-interference in states’ internal affairs and the norm of responsibility for civilian protection.17 Protection of Nationals Abroad The tension between sovereignty and responsibility is most pronounced in the consideration of the idea and practice of PNA. While PNA has been hotly debated within the broader rubric of the use of force in international affairs, it has rarely made it into the discussion of civilian protection. As PNA has long been reflected upon and practiced by states, this omission is consequential for our understanding of what civilian protection means and involves in various circumstances. Drawing on the earlier legal studies on the topic, Wingfield (1999-2000, 441) defines PNA as:

the use or threat of imminent use of armed force by a state to safeguard, and usually remove, its nationals from the territory or exclusive jurisdiction of another state, without

14 A/RES/60/1 of 24 October 2005, para. 139. Importantly, ‘paragraph 139 confirmed that international society may rightfully enforce the performance of [state’s] responsibilities and implied that such enforcement may be appropriately undertaken without sovereign consent’ (Glanville 2013, 199). 15 A/63/677 of 12 January 2009. 16 For further discussion, see Breakey et al (2012) and Francis et al (2012). See also SCR (2008) and GCRP (2009). 17 This is particularly evident in the case of Syria. See, for example, Garwood-Gowers (2013).

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the consent of that state or the authorization of the United Nations Security Council, where the lives of those nationals are in actual or imminent peril.

The use of force to rescue one’s nationals abroad was generally accepted prior to the adoption of the UN Charter (Brownlie 1963). Article 2(4) of the Charter, however, prohibits the use of force internationally, with the exceptions of action authorised by the SC to maintain or restore international peace and security (art. 42) and self-defence in an event of an armed attack (art. 51). The Charter does not provide for forcible intervention on behalf of a state’s nationals abroad. Neither does customary international law.18 Nonetheless, many states continue to undertake PNA actions (see, for example, Zedalis 1990; Quigley 1990; Chesterman 1999). Russia’s interventions in Georgia in 2008 and most recently in Ukraine in 2014 are vivid examples (Chatham 2011). The widespread use of PNA is often justified by the reference to the state’s inherent right to self-defence even if absent an armed attack.19 In 2000, the Special Rapporteur on Diplomatic Protection, the closest issue to PNA at the UN, drew on this justification to incorporate PNA into the debates of the International Law Commission. Only a few states responded positively, recognising the need to discuss the use of PNA within an official forum. Most, however, met the suggestion with great criticism. As a result, the practice of PNA has continued without thorough international discussion. As Grimal and Melling (2011, 543) argue, ‘there operates… a continuum of toleration’ regarding PNA, from the most abusive, when states use PNA to invade other states, as in the widely discussed case of the US invasion of Panama in 1989, to armed hostage rescue, such as the Israeli mission in Uganda in 1976, to the more tolerable non-combatant evacuation operations, when states withdraw their nationals from crisis situations, as in China’s evacuation from Libya in 2011. It is the latter, evacuation operations that come closest to a standard of behavior, with ‘various instances of states sending in troops to extract nationals and others from dangerous situations where a state was involved in a civil war or domestic unrest’ (Gray 2008, 159). While these operations may often be tolerated in practice and deemed as appropriate in certain circumstances, they bear implications for the study of the relationship among the norms of intervention to protect civilians and between these norms and the principles of sovereignty and non-interference. In contrast to PNA, the norms of POC and R2P are administered by the UN—an international body with rules and regulations, including SC authorisation and host state consent, set out in the Charter. PNA, on the other hand, is generally a unilateral practice, customarily bypassing international rules and regulations. Justified on self-defence or humanitarian grounds, PNA commonly proceeds in violation of sovereignty and non-interference in states’ internal affairs. Furthermore, PNA introduces an important distinction in the practice of protection between the different types of the civilians of concern. Whereas POC and R2P relate to all groups—civilians in armed conflict for the former and populations at risk of mass atrocities for the latter,—PNA

18 An alternative argument suggests that although the UN Charter does not provide for PNA, it does not outlaw it either (see, for example, Greenwood 1986-1987). See also Arend and Beck (1993) and Green and Waters (2010). 19 On justifications of PNA, see, for example, Ruys (2008). See also Eichensehr (2007-2008).

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shifts the focus to a specific group of nationals facing or perceived to be facing a serious threat in a crisis situation in a foreign country. This defining element of PNA inevitably brings to bear the aspect of domestic politics to civilian protection, often overlooked in the analysis of this issue. Importantly, the logic employed by states with regard to salient domestic issues, such as its nationals at risk abroad, often conflicts with the international positions of states on such questions as intervention and the use of force in international relations. China’s ‘Great Evacuation’ in Libya is an example of this tension. China and the Protection of Civilians in Libya China has historically insisted on respecting sovereignty and non-interference20 in international relations and seeking authorisation and consent to intervene in another state’s territory (Liu and Zhang 2014). Despite China’s increasing contributions to international efforts to protect civilians through peacekeeping and humanitarian assistance, ‘state sovereignty and non-[interference] are still the basic norms for China in dealing with international relations’ (Liu 2012, 166).21 However, China’s vote of abstention on Resolution 1973 (2011) authorising non-consensual military action in Libya and its actions with regard to Chinese nationals in Libya conflicted with these principles. Drawing on the case of China and Libya, this section discusses the application of R2P and POC to the Libyan crisis and brings the overlooked practice of PNA to the debate on civilian protection.22 Conflict Background On 15 February 2011, following the arrest of a human rights activist, a massive wave of anti-government protests began in Libya. Protesters were met with a harsh crackdown by the security forces of Colonel Muammar Gaddafi, who had ruled Libya for over four decades. Gaddafi’s forces used aircraft to attack protesters. As protests spread across the country, Gaddafi called on his supporters to go out and attack the ‘cockroaches’ protesting against him and vowed to ‘cleanse Libya house by house’ (BBC 2011).23 As events in Libya unfolded, regional organizations, including the Arab League and the African Union, began to express concern with the situation, strongly condemn the use of force against the protesters, and urge the Libyan authorities to immediately end violence and ensure the protection of civilians (Organization of the Islamic Conference, 20 February 2011; Council of the European Union, 21 February 2011; Arab League, 22 February 2011; African Union, 23 February 2011).24 The UNSC was as a result seized by the issue. It welcomed statements of the regional organizations

20 The principle ‘focuses on “interference”… but in certain cases seems to also cover “intervention”… often used interchangeably’ in China (Duchâtel et al 2014, 1). 21 China’s contribution to UN peacekeeping has greatly increased over the past decades, evidenced by the change in its ranking from 44 in 2001 to 15 in 2010 (Liu 2012, 164). 22 The case study draws on a comprehensive review of official documents on China’s position on R2P and POC and on civilian protection in the case of Libya, including published materials of the UN and regional organizations engaged in Libya, and a systematic media search on China’s response to the crisis, including Western media and Chinese sources, particularly Xinhuanet and the People’s Daily, in both English and Chinese. 23 For a full chronology of the events, see O’Brien and Sinclair (2011). 24 See Organization of the Islamic Conference (2011); Council of the European Union, EN 6763/11 of 21 February 2011; Arab League (2011); African Union, PSC/PR/COMM(CC LXI) of 23 February 2011.

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and ‘call[ed] on the Government of Libya to meet its responsibility to protect its population’ and nationals of foreign states present in the country.25 On 25 February, at the request of nearly 50 Member States of the UN, the Human Rights Council (HRC) convened the Special Session on Libya.26 The Session resulted in the resolution adopted by consensus, establishing an independent international committee of inquiry and recommending that the General Assembly suspend Libya from the HRC.27 Consequently, and for the first time in the history of the HRC, the GA decided to suspend a state’s membership from the Council.28 On 26 February, following the SC Meeting on Peace and Security in Africa, where the Secretary-General advised the international community to immediately adopt measures for civilian protection in Libya, the SC passed Resolution 1970 (2011).29 It stated that the attacks against civilians in Libya may amount to crimes against humanity, one of the four ‘R2P crimes’, and that the Libyan authorities have the responsibility to protect civilians. It demanded the Libyan authorities to end violence, requested Member States to cooperate in evacuating foreign nationals, referred the situation to the International Criminal Court, and imposed an arms embargo, travel ban, and assets freeze, while expressing a readiness to consider further action if necessary. Prompted by the failure of the Libyan authorities to comply with the resolution, on 17 March, the SC adopted further measures. Resolution 1973 (2011) reiterated the responsibility of the Libyan authorities to protect the Libyan population and expressed the determination of the SC to ensure the protection of civilians, including foreign nationals. The SC referred to the crisis as constituting a threat to international peace and security and, acting under Chapter VII of the Charter, authorised Member States to take all necessary measures to protect civilians. It established a ban on flights to help protect civilians and expanded the implementation of Resolution 1970 (2011). China and Resolution 1973 (2011) Given the references to R2P in Resolution 1973 (2011) and other statements of the UN, regional organizations, and international civil society, practitioners and academics in the area of civilian protection have argued that Libya constitutes an R2P case, one of the first cases in which the emerging norm passed the implementation test (Evans 2011; Claes 2011; Peral 2011; Rothwell and Nasu 2011). The Secretary-General called the resolution ‘an historic decision’ that ‘affirms… the international community’s determination to fulfil its responsibility to protect civilians from violence perpetrated upon them by their own Government.’30 Ramesh Thakur argued that with the implementation in Libya, R2P came closer to becoming an ‘actionable norm’ (Thakur 2011). Nevertheless, the standing of R2P in the case of Libya may be overstated. For China, in particular, R2P is merely a concept in need of clarification, rather than a norm.31 While China fiercely

25 SC/10180 of 22 February 2011. 26 A/HRC/S-15/1 of 25 February 2011. 27 A/HRC/S-15/L.1 of 25 February 2011. 28 A/65/L.60 of 25 February 2011; A/RES/65/265 of 3 March 2011. 29 For the Secretary-General’s address, see S/PV.6490 of 25 February 2011. See also UN News Centre (2011b). 30 SG/SM/13454 of 18 March 2011. 31 Viewed as a concept, R2P is ‘a proposal… requiring further development, elaboration, or agreement before it can be turned into shared expectations of appropriate behaviour’ (Bellamy 2009, 5). China referred to R2P as a concept in

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opposed R2P as articulated at the ICISS in 2001, it endorsed a limited version of R2P at the World Summit in 2005 and in Resolution 1674 (2006) reaffirming R2P.32 Chinese officials thereafter have argued that the Outcome Document ‘gave an extensive and very cautious representation of [R2P]’ and that ‘it is not appropriate to expand, wilfully interpret or even abuse this concept.’33 In a statement to the General Assembly on July 24, 2009, Ambassador Liu Zhenmin summarised China’s position on the interpretation and implementation of R2P. He said that, first, the primary responsibility for protection lies with the government of a given state. Implementation of R2P by the international community can include assistance, but must adhere to the principles of sovereignty and non-interference at all times. Second, R2P applies to the crimes specified at the World Summit and should not be extended. Third, unilateral implementation of R2P must be avoided and relevant actions must be in line with the UN Charter, the views of the government concerned, and those of regional organizations. Fourth, when authorising action, the SC must consider R2P in the context of international peace and security. Lastly, as R2P ‘remains a concept and does not constitute a norm of international law…, States must avoid using [it] as a diplomatic tool to exert pressure on others.’34 This summary indicates that China accepts certain elements of R2P. Assuming the limitation of the R2P scope to the four crimes, two pillars—the protection responsibility of the state and the commitment of the international community to assist the state given its consent—are in accordance with the UN Charter and international humanitarian law (and practice at the UN prior to the emergence of R2P).35 These pillars are supported by China. The last pillar—the responsibility of the international community to act in timely and decisive manner if a state fails to protect its people—is more problematic. Such action includes peaceful means under Chapter VI and VIII and, if these fail, non-peaceful means under Chapter VII.36 It is the latter that China is most concerned with.37 Regardless of the cause, China does not accept any action unless ‘the will of the Government concerned [is] respected and its sovereignty and territorial integrity preserved.’38 China’s prerequisites for action include not only consent, but also SC authorisation. ‘[N]o arbitrary intervention should be imposed on the Government concerned over its objection’ and, in authorising action, the SC must act with regard to its key task of maintaining international peace and security.39 As discussed above, the SC recognised, within POC framework, that breaches of IHL and human rights in armed conflict may constitute a threat to international peace and security. Therefore, the multiple statements, for example, S/PV.5319 of 9 December 2005; S/PV.5476 of 28 June 2006; S/PV.5577 of 4 December 2006; S/PV.5781 of 20 November 2007; S/PV.5898 of 27 May 2008. 32 For a detailed discussion, see Job and Shesterinina (2014). See also Teitt (2009), Foot (2011) and Tiewa (2012). 33 S/PV.5577 of 4 December 2006. 34 A/63/PV.98 of 24 July 2009. 35 See S/PV.5577 of 4 December 2006, p. 7: ‘in accordance with the Charter... and [IHL], the responsibility to protect civilians lies primarily with the Governments of the countries concerned.’ See also S/PV.5476 of 28 June 2006; S/PV.5781 of 20 November 2007. 36 A/63/677 of 12 January 2009, paras. 49-66. 37 See, for example, A/63/PV.98 of 24 July 2009. 38 S/PV.5703 of 22 June 2007. See also S/PV.5476 of 28 June 2006; S/PV.5577 of 4 December 2006; S/PV.5781 of 20 November 2007; S/PV.5898 of 27 May 2008. 39 S/PV.5703 of 22 June 2007.

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SC has a foundation to act with regard to these crimes. For China, however, the problem lies in the ambiguity of R2P as to the specific means involved and its fear that R2P will turn into a one-size-fits-all interventionary doctrine. ‘Conflict situations vary’, Chinese officials say, ‘there must be no one-size-fits-all approach to the protection of civilians… [We] still hold divergent views on [R2P], and the General Assembly should continue its discussion on this matter.’40 Until consensus on its application is reached, ‘[t]he Security Council should… refrain from invoking the concept.’41 The explanation China offered for its abstention, rather than veto, on Resolution 1973 (2011) is in line with this position.42 While the resolution stated that ‘the widespread and systematic attacks… against the civilian population [in Libya] may amount to crimes against humanity’, one of the ‘R2P crimes’, and ‘[r]eiterat[ed] the responsibility of the Libyan authorities to protect the Libyan population’, Chinese officials did not refer to R2P in discussing China’s vote or indicate that China’s view of the resolution was in light of R2P.43 As Liu (2012, 168) says, ‘Chinese attitude toward Libya… accorded with its attitudes towards the RtoP concept.’ The ambiguities China sees in the application of its third pillar prevented China from using R2P as a framework for intervention in Libya. Instead, Chinese officials appealed to extensive support of regional organizations for action and the particular situation prevailing in Libya at the time. ‘China is always against the use of force in international relations’, Chinese officials emphasised.44 Interference in a sovereign state must accord with the UN Charter, which prohibits the use of force, unless authorised by the SC to maintain or restore international peace and security or for self-defence. As ‘international peace and security’ and ‘self-defence’ can be interpreted differently and misused, the principles of sovereignty and non-interference must in all cases be respected, and host state consent for interference of any form sought (see, for example, Jiang Yu in Xinhuanet 2011e). Even if justified as a threat to international peace and security, Resolution 1973 (2011) authorised ‘all necessary measures’ and the no-fly zone without consent of the Libyan state. As a result, China ‘ha[d] serious difficulty with parts of the resolution.’45 However, ‘China attache[d] great importance to the relevant position [of regional organizations] on the establishment of a no-fly zone over Libya’, in particular the Arab League.46 The importance of regional organizations is a prominent theme for China.47 Chinese officials have long argued that

40 S/PV.6531 of 10 May 2011. See also S/PV.5319 of 9 December 2005; S/PV.5573 of 28 November 2006; S/PV.5834 of 12 February 2008; S/PV.6216 of 11 November 2009; S/PV.6427 of 22 November 2010. 41 S/PV.5703 of 22 June 2007. 42 A veto could be expected since the resolution authorised ‘all necessary measures’ to protect civilians, which implied intervention, and established a non-consensual no-fly zone over Libya (S/RES/1973 of 17 March 2011, paras. 4-12). China blocked similar resolutions in the past (Parello-Plesner and Duchâtel 2014, 115). 43 S/RES/1973 of 17 March 2011. This conclusion is based on a comprehensive survey of Chinese statements at the UN as well as international and local Chinese media on the issue, including the sources in English and Chinese. The reluctance to use R2P language was common in the Security Council. See, for example, S/PV.6498 of 17 March 2011. 44 S/PV.6498 of 17 March 2011. China’s position on the use of force in international relations is rooted in China’s fears of interference by other states (Tiewa and Zhang 2014). A non-democracy with serious human rights issues, territorial problems in Taiwan, Tibet, and Xinjiang, and a potential for natural disasters, China has a strong foundation for ensuring that interventionary policies remain an exception rather than a rule 45 S/PV.6498 of 17 March 2011. 46 S/PV.6498 of 17 March 2011. 47 China has been highly interested in becoming a key actor in the regions, particularly Africa. China’s insistence on the inclusion of the views of relevant regional organizations into the UN processes may be explained by this objective.

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the views of these organizations should be considered when making decisions at the UN level.48 The call of the Arab League for the imposition of a no-fly zone prior to the adoption of Resolution 1973 (2011), thus, greatly influenced China’s abstention (Liu 2012, 168).49 The establishment of an ad hoc High Level Committee on Libya by the African Union and other decisions of the organization with regard to the crisis as well played a role.50 Furthermore, Chinese officials repeatedly cited ‘the extremely exceptional situation’ in Libya and ‘the special circumstances surrounding the situation’ as a key justification for the vote.51 As early as on 23 February, the UN Secretary-General said that ‘[t]he nature and scale of the attacks on civilians [in Libya] are egregious violations of international humanitarian and human rights law’ (UN News Centre 2011a). Key UN figures, including UN High Commissioner for Human Rights, Navy Pillay, and regional organizations confirmed the gravity and urgency of the situation.52 Thus, ‘[t]he greatest urgency’, for China, was ‘to cease the violence, to end the bloodshed and civilian casualties.’53 As Garwood-Gowers (2015, 11) summarises, ‘Beijing’s decision… was shaped by an unusual set of circumstances, including the presence of regional support for international military intervention [and] the urgent need for international action in the face of Gaddafi’s explicit threats against civilians.’ The POC framework, as a normative foundation for international civilian protection, helps situate China’s vote in the broader normative context. China views POC as a well-grounded international framework for action. As Ambassador Liu argues, ‘The issue of the protection of civilians in armed conflict is an old one. International humanitarian law, including the Fourth Geneva Convention of 1949 and its two Additional Protocols of 1977, sets out adequate provisions in this regard.’54 Charged with maintaining international peace and security, the SC, for China, ‘[u]ndoubtedly… should focus on… the protection of civilians in armed conflict rather than anything else.’55 Through its resolutions, especially Resolution 1674 (2006), and presidential statements on POC, Ambassador Liu maintains, the SC established ‘[a] legal framework on the issue… that sets out specific requirements with regard to the actions of the parties concerned.’56 As a result, ‘[t]he international community’, according to China, ‘developed a relatively complete system of international legal norms’ on POC, which gives it a strong basis to guide international action on civilian protection.57 China’s key concern in this regard is how to effectively implement POC. As with R2P, Chinese officials strongly urge against a one-size-fits-all interventionary approach: ‘[POC] through the use of force should be authorized with extreme caution…, [after]

48 See, for example, S/PV.4980 of 28 May 2004; S/PV.5282 of 17 October 2005; S/PV. 5529 of 20 September 2006; S/PV.5649 of 28 March 2007; S/PV.5735 of 28 August 2007; S/PV.5868 of 16 April 2008; S/PV.6092 of 18 March 2009; A/63/PV.98 of 24 July 2009; S/PV.6206 of 26 October 2009; S/PV.6257 of 13 January 2010. 49 League of Arab States, Res. No.: 7360 of 12 March 2011. 50 African Union, PSC/PR/COMM.2(CCLXV) of 10 March 2011. 51 A/65/PV.76 of 1 March 2011; S/PV.6498 of 17 March 2011. See earlier reference to the special circumstances in SC/10187/Rev.1 of 26 February 2011; A/65/PV.76 of 1 March 2011. 52 Pillay 2011; Organization of the Islamic Conference, 20 February 2011; Council of the European Union, 21 February 2011; Arab League, 22 February 2011; African Union, 23 February 2011. 53 SC/10187/Rev.1 of 26 February 2011. 54 S/PV. 5577 of 4 December 2006. 55 S/PV.6216 of 11 November 2009. See also S/PV.4312 of 23 April 2011; S/PV.5319 of 9 December 2005. 56 S/PV. 5577 of 4 December 2006; see also S/PV.5476 of 28 June 2006. 57 S/PV.6216 of 11 November 2009.

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serious and careful discussion [by the SC…, and with] strict provisions on the mandate.’58 China has, thus, supported POC actions, especially when authorised with full consent of the host state.59 As ‘[t]he original intention of resolution… 1973 (2011) was to put an end to violence and to protect civilians’, Chinese officials argued, China’s vote was cast, in the normative terms, ‘to stabilize the situation in Libya as soon as possible and to halt acts of violence against civilians.’60 However, its implementation, according to the Chinese, exceeded the SC mandate, making it difficult for China to justify its vote in the aftermath of the crisis.61 The Great Evacuation While China justified its abstention on Resolution 1973 (2011) by reference to the regional support for intervention and the exceptional circumstances in Libya, its explanation for protecting Chinese nationals residing in Libya brought domestic factors to the fore. China carried out its largest non-combatant evacuation operation to date in Libya, for the first time actively involving the People’s Liberation Army (PLA) to protect Chinese nationals in a conflict zone (Duchâtel 2014, 48).62 The evacuation began on 22 February, when President Hu Jintao and Premier Wen Jiabao of China ordered ‘all-out efforts to secure the life and property of Chinese nationals in Libya’ (People’s Daily Online 2011a; CNTV 2011). On 23 February, the first of the two chartered Air China planes took off to Tripoli, followed in the next days by Xuzhou, PLA’s guided-missile frigate that carried anti-piracy duties off the coast of Somalia and was now set for Libya (Collins and Erickson 2011b; Duchâtel et al 2014, 49; Xinhuanet 2011a, 2011b). Other chartered planes, ships, including two Greek liners, and buses for overland routes to Egypt and Tunisia were as well employed.63 On 28 February, China’s evacuation became a ‘multi-service operation’, when the PLA Air Force, approved by the Central Military Commission, dispatched four Ilyushin-76 long-range military transport aircraft to Sabha, Libya, which entered the Libyan airspace (Collins and Erickson 2011a; Xinhuanet 2011c). By 3 March, the ‘Great Evacuation’, as Chinese media called it, returned home 35,860 citizens—the entire population of Chinese nationals residing in Libya (Xinhuanet 2011h; Xinhuanet 2011d; People’s Daily Online 2011c). These PNA actions with participation of the Chinese military rested on intricate grounds regarding the two prerequisites that China calls for in international intervention (see discussion above). First, the SC had not yet passed its resolutions on Libya by the time when China launched its operation. Resolution 1970 (2011) was passed on 26 February, when China’s evacuation was well under way. While the operation could be justified as normatively appropriate in the Libyan case, China had not had the specific SC authorisation in the first stages of the evacuation.

58 S/PV.6650 of 9 November 2011. Instead of reactionary force, China advocates conflict prevention and resolution, with an emphasis on preventative diplomacy and long-term economic development (S/PV.6531 of 10 May 2011). 59 China’s vote in favor of Resolution 1769 (2007), given Sudan’s acceptance of a peacekeeping force, is exemplary. 60 S/PV.6531 of 10 May 2011; S/PV.6498 of 17 March 2011. See also S/PV.6650 of 9 November 2011. 61 For China, the resolution turned into involvement in the civil war and regime change (S/PV.6531 of 10 May 2011). 62 Evacuation of Chinese nationals from conflict zones is not a new phenomenon for China. Recent examples include evacuations from Kyrgyzstan and Egypt in 2010 and 2011 respectively. For a list of evacuations in 2006-2014, see Duchâtel et al (2014, 46). The Libyan evacuation was different in its scope and use of the military. 63 See Duchâtel et al (2014, 50) for a full list of Chinese institutions involved in the operation.

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Second, the evacuation did not follow China’s usual approach of ‘rely[ing] on a host government to protect Chinese nationals in a time of conflict’ (Parello-Plesner and Duchâtel 2014, 115). China’s relations with Gaddafi had been strained.64 More importantly, the Gaddafi regime was engaged in the escalating civil war and could not protect Chinese nationals in Libya. In this context, ‘the full consent of the Libyan authorities [was] simply [unfeasible] because there [wa]s either no one to ask or no one able to answer with authority’ (Parello-Plesner 2011, 2). China had to rely on technical consent to enter the Libyan territory and the neighbouring countries’ approval of the operation. For example, a Chinese embassy staff member reported on 24 February that a permission for planes and ships participating in the evacuation to land and dock in Libya was requested (China Daily 2011). China, thus, ‘did not issue a statement as to whether it had sought prior approval from the Libyan authorities’, but declared that the Libyan authorities were not opposed (Duchâtel et al 2014, 49). Although the evacuation was ‘regarded by China as being in line with non-interference’, the conditions of ongoing violence in Libya created challenges for China to gain full consent of the state’s government. Domestic interests and notions of protection appear to be central to China’s unprecedented efforts. China’s expanding economic presence abroad, with Chinese nationals living and working in highly unstable environments, such as Libya, invites China to bend the principles of sovereignty and non-interference to protect Chinese nationals (Parello-Plesner and Duchâtel 2014). The significance of the issue is recognised to the extent that, after the Libyan operation, protection of Chinese nationals abroad became China’s ‘new foreign policy priority’ (Duchâtel et al 2014, 3). Domestic political pressure for such protection was paramount in the case of Libya, with ‘intense media attention and public focus on the crisis amplifying the pressure for Beijing to act’ (Zerba 2014, 1099). In their explanation of the evacuation for the domestic audience (most of the written material is in Chinese sources), Chinese commentators referred to the responsibility of the Chinese government to protect its citizens abroad as the foundation for the evacuation. Xinhua reporters emphasised that the evacuation effort demonstrated Jintao’s ‘people-first nature of the government’, captured in the government motto of ‘putting people first and running the government in the interest of the people’ (Xinhuanet 2011e; Liberation Army Daily 2011a). Commenting on the military’s involvement, Ji Mingkui, Major General and Professor at the National Defence University, said that mobilization of the PLA reflected the government’s commitment to bear its duty to protect Chinese citizens and even use the military to fulfil this duty (China Radio International Online 2011). For the Communist Party of China, the multi-service evacuation operation turned out to be a great success, as it was praised at home by the attendees of top annual meetings of the advisory body and the legislature and intellectuals (Xinhuanet 2011f).65 China’s internet users, ‘netizens’,—a segment of the population that has become of concern to China’s leadership with a potential for a ‘jasmine 64 For example, in 2006, Gaddafi’s son invited the President of Taiwan, a sensitive issue for China, to visit Libya. The same year, Gaddafi refused to participate in the Forum on China-Africa Cooperation and later, in 2009, Libyan official blamed China for ‘invading’ the continent (Yun 2011, 2). 65 Zhang Lili (2011), Director/Professor at the Contemporary Chinese Diplomacy Research Centre, China Foreign Affairs University, characterises the evacuation as the largest and shortest, farthest away, using the greatest variety of transportation means, number of countries and regions involved, the very first military deployment, and the most organised diplomatic actions. On the scale of the evacuation, see also China Military Online, 1 March 2011.

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revolution’ developing in the cyberspace—as well commended the evacuation (People’s Daily Online 2011b; Liberation Army Daily 2011b; Zerba 2014).66 Xinhua, the official news agency of the government of China, attributed the evacuation’s success to the timely orders of China’s leaders, its growing power, and ‘the advantage of the socialist system enabling the whole country to mobilize all of the necessary resources needed for an arduous mission’ (Xinhuanet 2011g; Xinhuanet 2011d). Referring to reports of Western media, Chinese media asserted that the world was amazed by China’s strength (People’s Daily Online 2011d). The notion of protection as the responsibility of the government for its people, expressed in China’s accounts of the evacuation, has ‘roots in Chinese traditions of statecraft and corresponding visions of world order’ (Yeophantong 2013, 332). As Krebs (2014, 19) finds, ‘traditional Confucian ideals and an understanding of the state’s responsibility to protect its people’ are tied to state legitimacy in Chinese thought and have carried their weight through time, shifting in the recent decades from a domestic focus to include protection of Chinese nationals internationally. The responsibility of the Chinese government to protect its nationals abroad is clearly reflected in China’s constitution.67 This understanding of the protection of Chinese nationals abroad accords with China’s treatment of R2P as primarily the responsibility of the government for protecting its own citizens.68 When a crisis occurs, Chinese officials argue that, be it natural or man-made, the host state is responsible for the safety of all civilians, including foreign nationals, and no intervention to protect them may take place without its consent.69 However, R2P does not incorporate the state’s protection duty for its citizens outside of its territory—what Thakur (2010) calls ‘the duty to protect.’ Neither does the well-established framework of POC.70 R2P and POC entail the protection of all civilians at risk of violence and specify the responsibilities of the host states and the international community for such protection. No unilateral or voluntary action by third states, or states whose nationals may be caught up in a crisis, is provided for by the two norms. Third states should act in accordance with the decisions of the SC regarding a crisis. In turn, PNA isolates foreign nationals as a distinctive group and assigns additional responsibility for their protection to the state whose citizenship they bear. This responsibility is not provided for by the UN Charter or customary international law. PNA involves intervention in another state’s territory even if no host state consent or SC authorisation have been provided and, thus, presents challenges to the principles of sovereignty and non-interference. While the Chinese evacuation in Libya proceeded from a precarious consent and SC resolutions authorising action only after the operation began, China’s growing international influence suggests 66 On the importance of Chinese cyberspace as an arena for nationalist activity and recognition by China’s leadership of the importance of netizens, see Hughes (2000); Erickson and Collins (2010); The Economist, 28 February 2011. 67 Constitution of the People’s Republic of China (art. 50); see also A/CN.4/506 of 7 March 2000. 68 A/63/PV.98 of 24 July 2009; see section on China and Resolution 1973 (2011). 69 See, for example, A/C.6/63/SR.23 of 3 November 2008. For China’s views on diplomatic protection and the prohibition on the use of force, see, for example, A/C.6/47/SR.2S of 2 November 1992; A/C.6/55/SR.19 of 30 October 2000. 70 As noted above, UN officials attempted, but failed to incorporate PNA into POC discussions.

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that under certain circumstances, when its domestic interests are at stake, China may be willing to forego its otherwise invariable insistence on sovereignty and non-interference in undertaking future PNA actions. As Chinese officials acknowledge, ‘It has always been China’s policy to not interfere with the domestic affairs of other nations, yet when it comes to protecting the rights and interests of its overseas nationals, the Chinese government will be fully mobilized’ (Xinhuanet 2010).71 Conclusion The analysis of China’s response to the 2011 crisis in Libya has implications for our understanding of the evolving norms of civilian protection and intervention in crisis situations. Drawing on this case, the article shows that, first, there exists a tension between the norms of intervention to protect civilians. In some cases, emerging norms, such as R2P, may be applied and cited in the international decisions taken to protect civilians. However, contestation over these norms persists and widely accepted frameworks, such as POC, may provide a more adequate logic for action for certain actors involved. China’s (as well as other states’) unwillingness to use the R2P language in justifying its vote on Resolution 1973 (2011), generally regarded in R2P terms, exemplifies this tension. Second, there exist grey areas in intervention to protect civilians that produce inconsistencies in the protection patterns, with an emphasis on distinctive groups to be protected, and the policies of such vocal proponents of sovereignty and non-interference as China. PNA is one such area, prioritising the protection of foreign nationals in crisis situations and posing dilemmas of intervention for states whose nationals reside in volatile countries. China’s ‘Great Evacuation’ in Libya highlights these dilemmas, raising the possibility that China’s traditional position on non-intervention may require adjustments. As Duchâtel et al (2014, 40) argue, ‘[p]roviding protection to increasing numbers of nationals overseas could potentially shift Chinese foreign policy away from non-interference.’ It remains to be seen how extensive this shift may be as Chinese nationals abroad find themselves in the midst of conflict in the future. Finally, China’s actions to protect the Chinese population in Libya shows that if it comes to states’ nationals facing serious threats abroad, states’ commitments to other international principles and norms may be compromised, as the aspect of domestic politics becomes more salient. This does not mean, however, that state action guided by domestic interests is devoid of normative basis. Driven by expanding international economic presence and domestic political pressure, China’s evacuation adhered to the long-standing notion of responsibility of the Chinese government for the protection of its people, both at home and, more recently, abroad. This case calls for a closer consideration of domestic norms in the discussion of intervention for civilian protection.

71 See also A/C.6/62/SR.10 of 19 October 2007. For a discussion of China’s exceptions to the rule of sovereignty and non-interference, see Mariani (2011).

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